Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s employment hereunder is terminated during but prior to the expiration of the Term, the Executive will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement): (a) In the event that the Executive’s employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive (or the Executive’s estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below); and (6) payment of a lump sum severance payment equal to the “Severance Amount” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive at the time of termination of the Executive’s employment prior to the end of the Term, the Executive will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.
Appears in 3 contracts
Sources: Employment Agreement (Marimed Inc.), Employment Agreement (Marimed Inc.), Employment Agreement (Marimed Inc.)
Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment hereunder is terminated during but prior to the stated expiration of the Term, the Executive ▇▇. ▇▇▇▇▇▇▇▇ will be entitled only to the following compensation and benefits under this Agreement Agree ment upon and following such termination (together with such other provisions that may be set forth in the Restricted Stock Option Agreement):Award Agreement or relating to equity awards under the Plan), in lieu of any further compensation under Section 3:
(a) In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive ▇▇. ▇▇▇▇▇▇▇▇ (or the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A:
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment, payable as and when such Performance Bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f);
(4) any vacation accrued and unused to the date of termination; and
(5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive ▇▇. ▇▇▇▇▇▇▇▇ was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment terminated, payable as and when such bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year. In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇▇'▇ employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive ▇▇. ▇▇▇▇▇▇▇▇ and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive ▇▇. ▇▇▇▇▇▇▇▇ or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive ▇▇. ▇▇▇▇▇▇▇▇'▇ (including or his estate's) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company.
(b) In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive ▇▇. ▇▇▇▇▇▇▇▇ without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive▇▇. ▇▇▇▇▇▇▇▇, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code;
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment, payable as and when such Performance Bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); and
(4) any vacation accrued and unused to the date of termination.
(c) In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive ▇▇. ▇▇▇▇▇▇▇▇ with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive▇▇. ▇▇▇▇▇▇▇▇, to be paid as soon as practicable following the date of such termination (except as stated unless otherwise indicated below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code:
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment, payable as and when such Performance Bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f);
(4) any vacation accrued and unused to the date of termination;
(5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive ▇▇. ▇▇▇▇▇▇▇▇ was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment terminated, payable as and when such bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year; and
(6) payment continued payments of a lump sum severance payment equal to Base Salary until the “Severance Amount” (one-year anniversary of the date of termination of ▇▇. ▇▇▇▇▇▇▇▇’▇ employment, payable in installments in accordance with the Company’s standard payroll practices, subject to Section 7(k) below5(f). The “Severance Amount” shall be an amount equal to In addition, for a period of six (6) months, beginning on the greater date of $500,000 or 100% termination of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination▇▇. Salary and Performance Bonuses refer to compensation actually paid ▇▇▇▇▇▇▇▇'▇ employment by the Company without Cause pursuant to Section 4(d), or by ▇▇. ▇▇▇▇▇▇▇▇ with Good Reason pursuant to Section 4(e), the Company will, at its expense, provide medical and group health insurance benefits to ▇▇. ▇▇▇▇▇▇▇▇ and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to ▇▇. ▇▇▇▇▇▇▇▇ or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that ▇▇. ▇▇▇▇▇▇▇▇'▇ co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the Executive, except amount that any Performance Bonus payable can be paid or provided by the Company without such benefit being deemed discriminatory under clause (2) above for a completed fiscal year will be treated as paidapplicable law such that it would result in material penalties to the Company.
(d) The benefits to which the Executive ▇▇. ▇▇▇▇▇▇▇▇ may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements.
(e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, benefit or fringe benefit plan applicable to the Executive ▇▇. ▇▇▇▇▇▇▇▇ at the time of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇▇’▇ employment prior to the end of the stated Term, the Executive ▇▇. ▇▇▇▇▇▇▇▇ will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment.
(f) This Agreement is subject to the Company’s 's “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.
(g) Effect of Code Sections 4999 and 280G on Payments.
(1) In the event that ▇▇. ▇▇▇▇▇▇▇▇ becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement or any other plan, arrangement, or agreement with the Company or a subsidiary (the “Payments”), and such Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to ▇▇. ▇▇▇▇▇▇▇▇ and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if so reducing the Payments under this Agreement will provide ▇▇. ▇▇▇▇▇▇▇▇ with a greater net after-tax amount than would be the case if no such reduction were made. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value to ▇▇. ▇▇▇▇▇▇▇▇, after taxes, of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g), and amounts reduced first will be payments that have a parachute payments value equal to their actual or intrinsic value to ▇▇. ▇▇▇▇▇▇▇▇. Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as “parachute payments” shall be reduced first.
(2) In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following:
(A) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code, as determined by the Company's independent accounting firm or other advisor;
(B) The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company's independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and
(C) The value of any non-competition covenants contained in this Agreement or other agreement between ▇▇. ▇▇▇▇▇▇▇▇ and the Company or an affiliate shall be taken into account to reduce “parachute payments” to the maximum extent allowable under Section 280G of the Code. For purposes of the determinations under this Section 5(g), ▇▇. ▇▇▇▇▇▇▇▇ shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the applicable payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of ▇▇. ▇▇▇▇▇▇▇▇'▇ residence or otherwise applicable to the compensation, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (unless it is impracticable for ▇▇. ▇▇▇▇▇▇▇▇ to itemize his deductions).
Appears in 1 contract
Sources: Employment Agreement (A-Mark Precious Metals, Inc.)
Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Mr. Crawford' employment hereunder is terminated during but prior to the expiration end of the Term▇▇▇ ▇▇▇▇, the Executive ▇r. Crawford will be entitled only to the following compensation and benefits under this Agreement upon ▇▇▇▇▇▇▇▇ ▇▇on such termination (together with such other provisions that may be set forth in the Stock Option Agreement):termination:
(a) In the event that the Executive’s Mr. Crawford' employment hereunder is terminated during but prior to the expiration of the expira▇▇▇▇ ▇▇ ▇▇▇ Term by reason of the Executive’s Mr. Crawford' death or Total Disability, pursuant to Section 4(a6(a) or 4(b▇(▇), the Company ▇▇▇▇ shall pay the following amounts to the Executive Mr. Crawford (or the Executive’s Mr. Crawford' estate, as the case may be), ):
(1) an▇ ▇▇▇▇▇▇▇ ▇▇t unp▇▇▇ ▇▇▇▇ ▇▇▇ary and Bonus (as determined pursuant to Section 3) for services rendered to the date of termination;
(2) any accrued but unpaid amounts required to be paid as soon as practicable following pursuant to Section 5(a) or 5(b); and
(3) any vacation accrued and unused to the date of such termination termination.
(except as stated otherwise belowb) In the event that Mr. Crawford' employment hereunder is terminated prior to the expira▇▇▇▇ ▇▇ ▇▇▇ Term by GMAI for cause, pursuant to Section 6(c), but in no event prior GMAI shall pay the following amounts to or later than the time such payment would not be subject to tax under Code Section 409AMr. Crawford:
(1) any accrued but unpaid Base Salary (as determine▇ ▇▇▇▇▇▇▇▇ ▇o Section 3) for services rendered before to the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d);
(4) any vacation accrued and unused to the date of termination; and
(5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company.
(b) In the event that the Executive’s employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code;
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued;
(3) any incurred but unreimbursed expenses amounts required to be reimbursed paid pursuant to Section 3(d5(a) or 5(b); and
(43) any vacation accrued and unused to the date of termination.
(c) In the event that the Executive’s Mr. Crawford' employment hereunder is terminated prior to the expiration of the Term by the Company GMAI without Cause pursuant Cau▇▇ ▇▇▇▇▇▇▇▇ to Section 4(d6(d), or by the Executive Mr. Crawford with Good Reason pursuant to Section 4(e6(e), the Company GMAI shall pay the following p▇▇ ▇▇▇ ▇▇▇▇▇wing amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the CodeMr. Crawford:
(1) any accrued but unpaid Base Salary (as determine▇ ▇▇▇▇▇▇▇▇ ▇o Section 3) for services rendered before to the date of termination;
(2) the Performance Bonus, if any, not yet any accrued but unpaid amounts required to be paid for any fiscal year ending prior pursuant to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continuedSection 5(a) or 5(b);
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d);
(4) any vacation accrued and unused to the date of termination;
(5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below); and
(64) payment of a lump sum severance payment equal to the “Severance Amount” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose50,000, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before payable in one lump-sum payment within 30 days following termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid.
(d) The benefits to which the Executive Mr. Crawford may be entitled upon termination pursuant to the plans, policies and ▇▇▇▇▇▇▇▇ ▇▇d arrangements referred to in Section 3(e5(b) will be determined and paid in accordance with the terms of those plans, policies and arrangements.
(e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Mr. Crawford at the time of termination of the Executive’s Mr. Crawford' employment prior to the ▇▇▇▇▇ ▇▇ ▇▇▇ end of the Term, the Executive will not be Mr. Crawford ▇▇▇▇ ▇▇▇ ▇▇ entitled to receive any other compensation, or to participate ▇▇ ▇▇ ▇▇▇▇▇cipate in any other plan, arrangement or benefit, with respect to any future period after the his termination of his employmentor resignation.
(f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.
Appears in 1 contract
Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment hereunder is terminated during but prior to the expiration of the Term, the Executive ▇▇. ▇▇▇▇▇▇▇ will be entitled only to the following compensation and benefits under this Agreement Agree ment upon such termination (together with such other provisions that may be set forth in the Stock Option Agreementany stock option, restricted stock units or other equity award agreement):
(a) In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s ▇▇. ▇▇▇▇▇▇▇' death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive ▇▇. ▇▇▇▇▇▇▇ (or the Executive’s to ▇▇. ▇▇▇▇▇▇▇' estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise belowprovided in clauses (5) and (6), and subject to Section 6(j) in the case of Total Disability with regard to payments under clauses (5) and (6)), but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A:
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment, payable as and when such Performance Bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h);
(4) any vacation accrued and unused to the date of termination; and;
(5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive ▇▇. ▇▇▇▇▇▇▇ was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment terminated, payable as and when such bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment continued based on actual performance achieved for the fiscal year year; and
(6) Payment of the Four-Year Incentive Bonus based on the Total Shareholder Return achieved through the conclusion of the Performance Period (which ends upon termination of employment), payable within 45 days after the end of the Performance Period (subject to Section 7(k6(j) belowin the case of Total Disability), provided that an amount will be retained by the Company based on the maximum amount potentially payable as the Performance Bonus under (5) above until such Performance Bonus is paid, at which time the remaining amount of the Four-Year Incentive Bonus, if any, also will be paid to ▇▇. ▇▇▇▇▇▇▇ or his estate. In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive ▇▇. ▇▇▇▇▇▇▇ and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive ▇▇. ▇▇▇▇▇▇▇ or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) ▇▇. ▇▇▇▇▇▇▇ co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company.
(b) In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive ▇▇. ▇▇▇▇▇▇▇ without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive▇▇. ▇▇▇▇▇▇▇, to be paid as soon as practicable following the date of such termination (except as stated otherwise belowprovided in clause (2), and subject to Section 6(j) with respect to clause (2) in the case of a termination for Cause), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code;
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment, payable as and when such Performance Bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); and
(4) any vacation accrued and unused to the date of termination.
(c) In the event that the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive ▇▇. ▇▇▇▇▇▇▇ with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive▇▇. ▇▇▇▇▇▇▇, to be paid as soon as practicable following the date of such termination (except as stated otherwise belowprovided in clauses (5) and (6), and subject to Section 6(j) with regard to payments under clauses (5) and (6))), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code:
(1) any accrued but unpaid Base Salary for services rendered before the date of termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment, payable as and when such Performance Bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment continued;
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h);
(4) any vacation accrued and unused to the date of termination;
(5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive ▇▇. ▇▇▇▇▇▇▇ was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment terminated, payable as and when such bonus would have been paid had the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment continued based on actual performance achieved for the fiscal year year;
(6) Payment of the Four-Year Incentive Bonus based on the Total Shareholder Return achieved through the conclusion of the Performance Period (which ends upon termination of employment), payable within 45 days after the end of the Performance Period (subject to Section 7(k6(j)), provided that an amount will be retained by the Company based on the maximum amount potentially payable as the Performance Bonus under (5) below); andabove until such Performance Bonus is paid, at which time the remaining amount of the Four-Year Incentive Bonus, if any, also will be paid to ▇▇. ▇▇▇▇▇▇▇.
(67) payment of a lump sum severance payment equal to the “Severance Amount.” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 2,000,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company A-Mark to the Executive▇▇. ▇▇▇▇▇▇▇, except that any Performance Perfor ▇▇▇▇▇ Bonus payable under clause (2) above for a completed fiscal year will be treated as paid.
(d) The benefits to which the Executive ▇▇. ▇▇▇▇▇▇▇ may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e3(g) will be determined and paid in accordance with the terms of those plans, policies and arrangements.
(e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive ▇▇. ▇▇▇▇▇▇▇ at the time of termination of the Executive’s ▇▇. ▇▇▇▇▇▇▇' employment prior to the end of the Term, the Executive ▇▇. ▇▇▇▇▇▇▇ will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment.
(f) This Agreement is subject to the Company’s 's “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.
(g) Effect of Code Sections 4999 and 280G on Payments.
(1) In the event that ▇▇. ▇▇▇▇▇▇▇ becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement or any other plan, arrangement, or agreement with the Company or a subsidiary (the “Payments”), and such Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to ▇▇. ▇▇▇▇▇▇▇ and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if so reducing the Payments under this Agreement will provide ▇▇. ▇▇▇▇▇▇▇ with a greater net after-tax amount than would be the case if no such reduction were made. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g). Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as “parachute payments” shall be reduced first.
(2) In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following:
(A) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code, as determined by the Company's independent accounting firm or other advisor;
(B) The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company's independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and
(C) The value of any non-competition covenants contained in this Agreement or other agreement between ▇▇. ▇▇▇▇▇▇▇ and the Company or an affiliate shall be taken into account to reduce “parachute payments” to the maximum extent allowable under Section 280G of the Code. For purposes of the determinations under this Section 5(g), ▇▇. ▇▇▇▇▇▇▇ shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the applicable payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of ▇▇. ▇▇▇▇▇▇▇’ residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (unless it is impracticable for ▇▇. ▇▇▇▇▇▇▇ to itemize his deductions).
Appears in 1 contract
Sources: Employment Agreement (A-Mark Precious Metals, Inc.)